February 1, 2017 (Fault Lines) — If you are a judge on my Court of Appeals, you will travel to the seat of the court in St. Louis. You will hold court in a stunning 29-story building that is the largest single courthouse in the United States.
In rather stark contrast, consider the following. The United States District Court for the District of Nebraska is authorized to hold court in three places—that is, Omaha, Lincoln and North Platte. See 28 U.S.C. § 107.
Out west, where Central Time nearly fades out, sits North Platte, Nebraska. The distance between North Platte and Denver is about 265 miles. The distance between Omaha (the headquarters of our court) and North Platte is about 277 miles.
When you read this post, I will be in North Platte trying a non-jury criminal case. The government alleges that Defendant, a Nebraska rancher, allowed 300 head of his cattle to graze on land in the Valentine National Wildlife Refuge without paying the required fee. See, e.g., 16 U.S.C. § 668dd (f) (1) or (2). This is not a “Cliven Bundy” case. That clarified, the prosecutor and the CDL are both superb trial lawyers. Moreover, I have never tried such a case. So, it should be interesting.
Do I have to try the case in North Platte? Well, as is his right, the defendant demanded it, and the Eighth Circuit has said such a demand must be given serious consideration, especially when it is more convenient for the defendant and his witnesses. United States v. Stanko, 528 F.3d 581 (8th Cir. 2008) (applying Federal Rule of Criminal Procedure 18, and reversing conviction for failing to try the case in North Platte).
But I should write no more about my trial. This post is not really about that specific case anyway. This post is about what it is like to be a federal trial judge in a large western state where there are more farm animals than people and where, every so often, one must pick up and travel far away to try a case.
Let me start with some history. Had I been a Nebraska federal district judge in 1954, my travel obligations would have been far more demanding. I might have been required to hold court in eight places—one site was on the border of South Dakota, not far from Wyoming, and one on the Kansas border, not far from Colorado. A judge would have had to have traveled 1,018 miles to “ride” the full circuit.
But my old boss, Judge Donald R. Ross, who was then the United States Attorney, got the lawyers and politicians to agree that if the court promised that it would always travel to North Platte to hold federal court, then the other “western” sites could be eliminated. The judge was a master at getting folks to agree to do what was best for everyone. I suppose that’s why he was tapped to run the 1968 Republican convention in Miami where Richard M. Nixon became that party’s successful candidate for President.
So, after doing a sentencing in Lincoln on Monday, I will drive the 230 miles from Lincoln to North Platte to start my four-day case on Tuesday.
Along the way, I will have dinner with Judge Jim Doyle, my former law partner, who resides in Lexington about 60 miles east of North Platte. That will be a special treat since I don’t get to see Jim very often. He was one of the best trial lawyers I have ever known, and he is certainly among the most decent and fair-minded people on the planet.
It is too early for the cranes, but as I drive alongside the Platte River on I-80 I will see them in my mind’s eye. Each spring, more than 80 percent of the world’s population of Sandhill cranes converges on Nebraska’s Platte River valley. With them come millions of migrating ducks and geese in the neighboring rainwater basins.
“This staging is one of the world’s great wildlife spectacles, on a par with the epic migrations of the wildebeest and the caribou.” Alex Shoumatoff, 500,000 Cranes Are Headed for Nebraska in One of Earth’s Greatest Migrations, Smithsonian (March, 2014).
Let’s now speak generally about trying a federal case in NP. North Platte is the perfect place to hold federal court! Well, that is only sorta true.
It is true that North Platte is emblematic of Nebraska and the west. After all, it was the home of Buffalo Bill and his “Scouts Rest Ranch.”
North Platte is also critical to the iconic Union Pacific Railroad. The UP’s Bailey Yard, in this city of about 25,000, is the largest railroad classification yard in the world. It has 17 receiving and 16 departure tracks, handling 14,000 rail cars every 24 hours.
Moreover, right down the road in Mountain Time, but only barely, is one of my favorite restaurants and bars in all the world. That would be Ole’s. I plan on having a steak there. While Ole is gone now, I will enjoy, as ever, gazing on the more than 200 big game trophies that he shot on safari and then stuffed and displayed in this town of 509 souls.
But there are also some minor problems that crop up when holding federal court in North Platte.
First, we don’t have a federal courthouse, or even a federal courtroom in North Platte. Awkward!
A few years back, we gave up our space to save federal taxpayers a lot of money when the old three story federal post office closed. By then, the number of NP cases dwindled to a trickle similar to the nearly nothing late summer flows of the South Platte River and the North Platte River that join to make the Platte River near NP. We “borrow” the state trial court’s facilities for the rare federal trial. Incidentally, our state counterparts are wonderfully helpful despite our demanding ways.
Second, we have no employees in North Platte either. So, I must take a courtroom deputy with me from the Lincoln clerk’s office, as well as an IT person. I use digital audio recording rather than a court reporter. The maintenance set up and take-down of the computer and digital audio stuff is a significant task.
However, and as usual, I will not take my secretary or a law clerk. Unlike Tupac, I don’t fancy traveling with an entourage—as he proved, its bad juju.
Third, we also lack a US Marshal’s outpost in North Platte. So, two court security officers will motor out to North Platte with their blue sport coats and six guns (in reality, probably Glock 9mm pistols). I tried to call off the security detail, but was “overruled” by the judicial security specialist in Omaha.
Each of the 94 federal district courts have a judicial security specialist whose sole job it is to make sure that we judges do not become the functional equivalent of clay pigeons.* Speaking of them things, take a moment to listen to Blaze Foley, the late, great country music singer and songwriter, intone Clay Pigeons.
Finally, and at least for me, there is one other problem with North Platte trials. The last time I tried a case in NP, I had a heart attack! Wish me better luck this time.
Richard G. Kopf
Senior United States District Judge (Nebraska)
*I once spent a good deal of time traveling in central and western Nebraska representing what was then called the Federal Land Bank of Omaha. My job was taking farms and ranches away from farmers and ranchers during the farm crisis of the early 1980s. I never had a problem, although I got nervous a couple of times. Out west, I know when I am in danger and when I am not. I am perfectly safe without security in North Platte. But I can’t blame the judicial security specialist for enforcing the USMS rule that any criminal trial requires that there be judicial security officers present. (I think it was after I declared the Nebraska flag desecration statute unconstitutional and ruled in favor of a member of the infamous Westboro Baptist Church, one of the CSOs suggested I should begin carrying a gun. I laughed that off thinking that I didn’t want to end up like my cop-friend who literally shot himself in the foot.)